A call for coherence on official languages

While the federal government has pledged to review and modernize the Official Languages Act, it’s been defending a decision in court that will wreak havoc on minority language communities.

The Federal government is at a crossroads in its championing of language rights.

On the one hand, it is resolutely moving towards a full modernization of the Official Languages Act. This law, which is meant to serve not just as a lifeline for official language communities but as a driver of their vitality, is failing. It guarantees that these communities can access federal services, work in the public service, and be heard by federal courts in their language, among other things.

In order to give it teeth, aspecific provision requires federalinstitutions take “positive measures” to support community development. Yet, this fundamental piece of the legislation has countless shortcomings, not least of which are its inept governance structure and weak enforcement mechanisms.

The need for structural reform is so great that both the Senate and the House are ambitiously studying the topic, while the prime minister has, more than once, publicly stated his government’s commitment to modernizing the law. Official Languages Minister Mélanie Joly launched this review earlier this month.

Meanwhile, in court, a very different story is unfolding. Canada’s attorney general is defending a decision that will wreak havoc on minority language communities. Last May, the Federal Court released its judgment in La Fédération des francophones de la Colombie-Britannique vs. Canada. The backdrop to this case is a 2008 federal-provincial agreement, through which Canada entrusted British Columbia with implementing its policies on employment assistance services.The result? A dramatic decrease in the participation of Frenchspeaking communities in the provision of such services and their availability in French.

In court, French speakers claimed that the federal government had to take “positive measures” to prevent the agreement from harming them. In a dramatic twist, the court found the Official Languages Act “devoid of all specificity” and shied away from imposing particular duties. It reasoned that: as the government had done something—held certain consultations and included a weak language provision in the agreement—it was shielded from scrutiny.

The response? National consternation. The federal government can contract out the implementation of its policies and, in so doing, is held to such a low standard in terms of oversight and impact assessment that quasi-constitutional language protections are meaningless. The duty to take “positive measures,” meant to give teeth to the legislation, is merely smoke and mirrors. To be sure, this was never Parliament’s intention, and politicians of all stripes have expressed their disbelief.

The Fédération des francophones de la Colombie-Britannique and the official languages commissioner have appealed the decision, and the matter is now before the Federal Court of Appeal. There is a widespread consensus that the judgment cannot stand. Unfortunately, absent a change of course, the attorney general will defend the previous government’s actions and the Federal Court’s narrow and damaging interpretation of the law. This will hurt Quebec’s English speakers and all Frenchspeaking Canadians.

The greatest irony is that the prime minister publicly promised to rewrite the Official Languages Act merely two weeks after the Federal Court’s judgment, largely in response to that very judgment. Is there nothing that can be done?

The federal government would be well advised to look to a decision it made early in its mandate. Readers will be surprised to learn that, instead of mechanically defending an outdated regulation made under the Official Languages Act, which determines where federal services must be offered in both languages, the former attorney general stayed the case (a challenge brought by the Société franco-manitobaine, scheduled to be heard by the Federal Court). Scott Brison, then-president of the Treasury Board, and Joly proudly announced that the regulation would be rewritten and, in the meantime, that no federal service would cease to be offered in both languages. This result was a great victory for language rights in Canada.

The current justice minister and attorney general, David Lametti, can be just as creative. Padminee Chundunsing is chairperson of the Fédération des francophones de la Colombie-Britannique. Mark Power, Perri Ravon, Darius Bossé, and Jennifer Klinck are lawyers at Power Law representing the federation in its appeal.

The Hill Times

Photo credit : Official Languages Minister Mélanie Joly, pictured last year, announced earlier this month a review of the Official Languages Act. The Hill Times photograph by Andrew Meade